78 Ala. 328 | Ala. | 1884
The general rule is, that to entitle a party to a mandamus, there must concur a specific legal right, and the absence of any other specific and adequate legal remedy. The adequacy of another legal remedy, so as to prevent interposition by mandamus, is tested by its sufficiency to place the party in the position he occupied before the omission of duty complained of, or would have occupied if the duty had been performed. The statute makes it the duty of the county treasurer, whenever there is a surplus of the funds arising from fines and forfeitures, over and above the sum required to pay the registered claims of State witnesses, to pay the fees of the officers of court arising from criminal cases, in which the defendants have been convicted, and have been proved insolvent; or, in which the State enters a nolle-prosequi / or the indictment has been withdrawn and filed; or the prosecution abated by the death of the defendant. — Code, § 4461. It may be conceded, that where a warrant, though drawn by the proper officer, is payable out of the general funds of the county, a man-dam,us will not lie to compel its payment; but the party will be left to his remedy on the official bond of the officer, or by action on the case. The court of County Commissioners has no control over fines and forfeitures, and can create no claim against the fund. The fund does not arise from taxation, but from fines-imposed as punishment, penalties for disobedience of the process of court, forfeitures of bail recognizances, and like sources. The fine and forfeiture fund is subject to the control of the legislature; the claims to be paid out of it, their preférenees, and the conditions of payment, may be modified or changed by the General Assembly; and it is to be disbursed by the treasurer according to law. The statute creates, the conditions occurring, a specific right to be paid opt of a specific fund, set apart for the purpose. An action on the case against the treasurer, or an action on his official bond, for neglect or breach of duty, affords pecuniary compensation, but does not compel performance of the specific duty. Another remedy, to defeat mandamus, must be adequate to enforce the right or the duty in question. — Craig v. Dougherty, 45 Mo. 294; Kendall v. United States, 12 Pet. 524; Fremont v. Crippen, 10 Cal. 211; McCullough v. Mayor of Brooklyn,
It may be conceded, that the petition for a mandamus is defective, in not averring, as to several of the claims, that the persons to whom the fees are alleged to be due were officers of court, and that the verified statement, required by section 4462, was not made. These defects are not assigned as special grounds of demurrer, and can not be considered by ns. When a demurrer is sustained, and special causes of demurrer are not contained in the record, we affirm, if there be any sufficient cause of demurrer, on the presumption in favor of the ruling of the primary court; but, where special grounds of demurrer are set forth, our consideration is confined to them. The purpose of the statute is to require the demurrant to assign specially the insufficiency relied on, that the opposite party may have an opportunity to amend, if amendable. — P. & M. Mer. Ins. Co. v. Selma Sav. Bank, 63 Ala. 585; Sloan v. Frothingham, 65 Ala. 593; Humphrey v. Burleson, 72 Ala. 1; Cotten v. Rutledge, 33 Ala. 110.
Reversed and remanded, for such further proceedings as the applicants may be advised.